L v Commonwealth of Australia - [2009] FCA 4

FEDERAL COURT OF AUSTRALIA
L v Commonwealth of Australia [2009] FCA 4
L v COMMONWEALTH OF AUSTRALIA, THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL, THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS, THE GENERAL MANAGER, CRS AUSTRALIA, THE STATE OF NEW SOUTH WALES, ANNETTE O'NEILL, STEPHEN HODGES, JULIAN MILLAR and AMANDA MACDONALD
NSD 843 of 2008
STONE J
9 JANUARY 2009 (CORRIGENDUM 29 JANUARY 2009)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 843 of 2008

BETWEEN:
L
Applicant

AND:
COMMONWEALTH OF AUSTRALIA
First Respondent

THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL
Second Respondent

THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Third Respondent

THE GENERAL MANAGER, CRS AUSTRALIA
Fourth Respondent

THE STATE OF NEW SOUTH WALES
Fifth Respondent

ANNETTE O'NEILL
Sixth Respondent

STEPHEN HODGES
Seventh Respondent

JULIAN MILLAR
Eighth Respondent

AMANDA MACDONALD
Ninth Respondent

JUDGE:

STONE J

DATE OF ORDER:

9 JANUARY 2009 (CORRIGENDUM 29 JANUARY 2009)

WHERE MADE:

SYDNEY

CORRIGENDUM
1.Delete the list of respondents on page 1 of the Orders and on page 1 of the Reasons for Judgment and substitute the following list of respondents:
COMMONWEALTH OF AUSTRALIA
First Respondent
THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL
Second Respondent
THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Third Respondent
THE GENERAL MANAGER, CRS AUSTRALIA
Fourth Respondent
THE STATE OF NEW SOUTH WALES
Fifth Respondent
ANNETTE O'NEILL
Sixth Respondent
STEPHEN HODGES
Seventh Respondent
JULIAN MILLAR
Eighth Respondent
AMANDA MACDONALD
Ninth Respondent
2.In paragraph 4 of the Reasons for Judgment delete “substituting” and insert “submitting”.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Stone.
Associate:
Dated: 29 January 2009
FEDERAL COURT OF AUSTRALIA
L v Commonwealth of Australia [2009] FCA 4
L v COMMONWEALTH OF AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL, THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS, THE GENERAL MANAGER, CRS AUSTRALIA, THE STATE OF NEW SOUTH WALES, ANNETTE O'NEILL, STEPHEN HODGES, JULIAN MILLAR and AMANDA MACDONALD
NSD 843 of 2008
STONE J
9 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 843 of 2008

BETWEEN:
L
Applicant

AND:
COMMONWEALTH OF AUSTRALIA
First Respondent

THE COMMONWEALTH OF AUSTRALIA
Second Respondent

THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL
Third Respondent

THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Fourth Respondent

THE GENERAL MANAGER, CRS AUSTRALIA
Fifth Respondent

THE STATE OF NEW SOUTH WALES
Sixth Respondent

ANNETTE O'NEILL
Seventh Respondent

STEPHEN HODGES
Eighth Respondent

JULIAN MILLAR
Ninth Respondent

AMANDA MACDONALD
Tenth Respondent

JUDGE:

STONE J

DATE OF ORDER:

9 JANUARY 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave to appeal be refused.
2.The application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 4
Decision Date: 9 January 2009

CaseChat Overview and Summary

The case of L v Commonwealth of Australia involves an application for leave to appeal against the decision of Cameron FM in the Federal Magistrates Court, which dismissed the applicant's application to commence proceedings out of time. The Federal Magistrate had also refused to join the New South Wales Guardianship Tribunal in the proceeding. The application for leave to appeal was made following the decision in L v Commonwealth of Australia [2008] FMCA 658. The underlying dispute relates to the termination of the applicant's complaints by the Human Rights and Equal Opportunity Commission, which has since been renamed the Human Rights Commission. The Federal Magistrate had ruled that the applicant's application to the Federal Magistrates Court, made on 6 November 2006, was more than two years outside the 28-day period allowed by section 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

The legal issues before the court were whether the decision of the Federal Magistrate was interlocutory, requiring leave to appeal, and whether the State of New South Wales was a respondent to the complaint terminated by the Commission. The applicant argued that the Federal Magistrate's decision was final and not interlocutory, thus leave to appeal was not required. However, the court held that the decision was clearly interlocutory as it was grounded on the delay in commencing the proceeding and not on any final determination of the applicant's claims. Regarding the State of New South Wales, the Federal Magistrate found that it was not a respondent to the complaint terminated by the Commission based on the evidence that the Commission had declined to investigate the applicant’s complaint against the NSW Department of Health prior to the termination decision.

The court concluded that leave to appeal must be refused, and the application was dismissed with costs. The court found that the Federal Magistrate's decision was interlocutory and required leave to appeal. Additionally, the court upheld the Federal Magistrate's finding that the State of New South Wales was not a respondent to the terminated complaint. Therefore, the application for leave to appeal was dismissed and the applicant was ordered to pay costs.

Orders

Orders of the court

1. Leave to appeal be refused.

2. The application be dismissed with costs.

Note:

Background

Background to the litigation

This is an application for leave to appeal from a decision of Cameron FM refusing the applicant leave to commence proceedings out of time; L v Commonwealth of Australia [2008] FMCA 658. His Honour also refused to join the New South Wales Guardianship Tribunal in the proceeding.Background The proceeding before the Federal Magistrate arose from the termination by the Human Rights and Equal Opportunity Commission, now known simply as the Human Rights Commission, (the Commission) of the applicant’s complaints against the Social Security Appeals Tribunal and others. The Commission’s notice of termination was dated 19 January 2004. The application to the Federal Magistrates Court was made on 6 November 2006 more than 2 years outside the 28 day period provided under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). As his Honour’s decision was interlocutory the applicant may only appeal against that decision with the leave of the Court. Apart from the seventh respondent who has entered a substituting appearance, the respondents oppose the grant of leave. In the alternative, assuming that leave to appeal is given, they seek security in the amount of $10,000 for the costs of the first to fourth, sixth, eighth and ninth respondents and in the amount of $12,000 in respect of the costs of the fifth respondent. As I have concluded that leave to appeal must be refused it is not necessary to consider the issue of security for costs further. The applicant attempted to argue that his Honour’s decision was final, not interlocutory, and therefore leave to appeal is not required. That submission cannot be sustained. Although his Honour discussed other aspects of the case put by the applicant, his decision was independently grounded on the delay in commencing the proceeding and not on any final determination of the applicant’s claims. It was clearly an interlocutory decision and leave to appeal from it is required; s 24(1A) Federal Court of Australia Act 1976 (Cth).The third, fourth and fifth respondents Under s 46PO of the HREOC Act, an application for review of the decision contained in the notice of termination issued on 19 January 2004 could only be brought against respondents to the complaint terminated by that notice. The Federal Magistrate decided that the fifth respondent, the State of New South Wales was not a respondent to that complaint. His Honour’s reasons are given in [30] of his judgment as follows:As to the fifth respondent, the State of NSW, the Commission had declined to investigate the applicant’s complaint against the NSW Department of Health by a separate decision prior to the 9 January 2004 decision … The applicant has submitted that the fifth respondent, in the form of the New South Wales Department of Health, was a respondent to the terminated complaint of 19 January 2004 on the basis that the parameters of the complaint included but were not limited to those set out in the notice of termination and that reference can be had to antecedent correspondence to identify the true terms of the complaint: Hollingdale v Northern Rivers Area Health Service. While it is true that a degree of flexibility is appropriate when identifying the scope of a complaint to the Commission, the issue here is not one of the application of s.46PO(3) and whether the proceedings in this Court allege discrimination the same or the same in substance as the complaint to the Commission, which is what was considered in Hollingdale v Northern Rivers Area Health Service. Here the question is the application of s.46PO(1) and whether the respondents to these proceedings are the same as the respondents to the complaint terminated by the Commission. As noted above, the evidence demonstrates that it was in its letter of 24 November 2003 that the Commission advised that it did not accept as a complaint that part of the applicant’s correspondence referring to the NSW Department of Health.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STONE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 843 of 2008

JUDGE:	STONE J
DATE OF ORDER:	9 JANUARY 2009 (CORRIGENDUM 29 JANUARY 2009)
WHERE MADE:	SYDNEY

BETWEEN:	L Applicant
AND:	COMMONWEALTH OF AUSTRALIA First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent THE NATIONAL CONVENOR, THE SOCIAL SECURITY APPEALS TRIBUNAL Third Respondent THE SECRETARY, THE DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Fourth Respondent THE GENERAL MANAGER, CRS AUSTRALIA Fifth Respondent THE STATE OF NEW SOUTH WALES Sixth Respondent ANNETTE O'NEILL Seventh Respondent STEPHEN HODGES Eighth Respondent JULIAN MILLAR Ninth Respondent AMANDA MACDONALD Tenth Respondent
JUDGE:	STONE J
DATE OF ORDER:	9 JANUARY 2009
WHERE MADE:	SYDNEY